NZ Employment Law

Don't skimp on misconduct investigations

2011-03-14T12:31:00.000+13:00

A recent ERA case (Field v Chief Executive of the Department of Corrections; [2011] NZERA Wellington 26) has highlighted the importance of engaging in a full, thorough and fair investigation before dismissing an employee.

Mr Field was dismissed following an investigation into allegations of sexual harassment made against him by a colleague. The Department had appointed an investigator to investigate the complaints, and the subsequent investigation report stated that there was evidence to show Mr Field had engaged in sexual harassment, threatening, abusive, and insulting behaviour and that he may have breached the Department’s code of conduct.

The Assistant Regional Manager accepted the facts and findings of the report and concluded that Mr Field’s behaviour was serious misconduct and dismissed him.

The ERA found that a fair and reasonable employer would have detailed the allegations that had been accepted from the report so that Mr Field could be clear what allegations he was facing. Mr Field was not given the opportunity to comment on the report’s findings before the manager accepted them. The report’s findings of “threatening and abusive and insulting behaviour” were not backed up with what evidence was being relied on. There was insufficient evidence and reasoning provided for how the manager concluded there had been sexual harassment and a breach of the code of conduct, and one of the behaviours complained of did not amount to sexual harassment in terms of the Department’s policy.

The ERA also found that the Department did not apply the required test as written in its own policy and the Department was unable to show that it could establish that Mr Field was guilty of serious misconduct to the necessary standard. Where there was a serious allegation, sufficient proof of the allegation to a high standard was needed. The evidence available at the time was based on a number of incidences that were not sufficiently detailed and lacking in first hand accounts of harassment by Mr Field.

The dismissal was therefore unjustified, and as Mr Field had been allowed to continue to work for the approximately 10 month investigation process, was able to be separated in the workplace from the alleged victim,and had showed willingness to cooperate and act appropriately and attend any training required, he was reinstated.
He was also awarded 23 weeks reimbursement of lost wages, together with a further $8,000 for injury to feelings.

It cannot be emphasised enough how important it is to institute a thorough investigation, and give the employee a full opportunity to comment on all allegations.

Sleepover Court of Appeal decision published

2011-02-17T11:54:00.001+13:00

The Court of Appeal has handed down its decision in the case of Idea Services Limited –v- Dickson. It’s an important case which has implications for all employers employing staff to sleep on call.

Mr Dickson works in a residential care home for disabled people. He occasionally has to sleep over and be available to deal with the many issues that arise at night in such a care facility. He is not permitted to lock the room in which he is sleeping, must remain in the home, can only have visitors with permission, must limit his activities and not consume alcohol. He could also be interrupted several times during the night.

Mr Dickson received more than the minimum wage for his day time hours but did not receive the minimum wage for the period in which he slept over, receiving instead a lump sum sleepover allowance, which worked out at much less than the hourly minimum wage. Mr Dickson argued he was entitled to the minimum wage for each hour of the sleepover.

The Court of Appeal has confirmed the previous findings of the Employment Relations Authority and the Employment Court that Mr Dickson’s duties during a sleepover constituted work for the purposes of the minimum wage legislation. Relevant factors in reaching this decision are:

1 the constraints placed on the freedom of the employee during a sleepover;

2 the nature and extent of his responsibilities during a sleepover; and

3 the benefit to the employer of having the employee perform the role.

Just because there were times when Mr Dickson did nothing did not mean he was not working, any more than a shop assistant is not working when he or she is not serving customers or doing other shop tasks.

The other finding of the Court of Appeal was that the employer is not permitted to average the wage received by Mr Dickson over a fortnightly period (which would work out at an hourly wage above the minimum wage) but that Mr Dickson had to receive the minimum wage for every hour worked. This conclusion is based on the wording of the Minimum Wage Act 1983, which makes no mention of averaging.

This case involves just one worker of course, but there are likely to be many hundreds of workers in similar positions who may now claim back pay. It has been estimated that this could cost around $500 million.

I predict a quick change to the legislation by government (which, however, reflects EU and UK law in this respect). However, government cannot make a retrospective change, disentitling workers to back pay, without creating a lot of controversy.

Don’t knock a good IT policy

2011-02-16T16:00:00.001+13:00

There has recently been reported an Australian case which illustrates how careful employees have to be if they have been given and have agreed to comply with a workplace IT and internet usage policy. This case could easily have happened in New Zealand with the same outcome.

The case (Griffiths v Rose [2011] FCA 30) was heard by the Federal Court of Australia and involved a senior public servant working for the Department of Energy, Resources and Tourism. Mr Griffiths accessed pornography at his home using his own internet connection but using a laptop supplied by the Department. No-one else saw the material, and it was not illegal. Mr Griffiths also deleted the browser history to prevent accidental discovery.

However, unbeknownst to Mr Griffiths, the Department had installed a desktop logging system on his laptop which recorded particular keywords and snapshots of his computer's desktop every 30 seconds. It recorded Mr Griffiths' viewing of pornography after he typed a flagged keyword, 'knockers', into a search engine.
Mr Griffith’s problem was that he had read and signed the Department’s IT policy which expressly prohibited the viewing of pornography on its IT facilities, and which also stated expressly that the use of its IT facilities would be monitored. Despite his 25 years’ service, Mr Griffiths was dismissed.

As Mr Griffiths had been expressly warned in the policy that his use of the equipment would be monitored and that the viewing of pornography on the equipment was prohibited, the court held that the covert monitoring was not unfair.

Furthermore, given that the IT policy stated that disobedience of the prohibition on viewing pornography could result in termination of employment, and given that Mr Griffiths had come up with an elaborate explanation as to why he had viewed the material which the court found was not credible, the court found that his dismissal was not unfair. The judge did say that the termination “may well be harsh – there will be those who think it inhumane” but that was not the requisite standard and so the dismissal was not unreasonable.

The lesson for employers is that you should make crystal clear in your IT policies that you will monitor the use by employees and contractors of your systems and equipment, that viewing of pornography is prohibited, and that termination may follow if that prohibition is breached. Employers should also get employees and contractors to sign a declaration to say they have read and understood the policy.

Redundancy consultation is essential – don’t botch it!

2011-02-16T15:12:00.000+13:00

Following a redundancy dismissal many former employees allege that the redundancy was not genuine, and that the dismissal was therefore unjustified. However, whilst some redundancy dismissals are shams, this is often very hard to prove. Even if the decision to restructure results in the loss of a poorly performing employee, so long as there is a genuine need to restructure justifying the loss of the post, the redundancy will not be a sham and the reason will not be questioned by the courts.

A more fruitful avenue for redundant employees is to attack the process followed by the employer – it is often flawed. A fair process effectively means two things – (1) giving enough information to and (2) consulting with potentially affected employees before dismissing them as redundant. Consultation goes much further than giving information though, and that is where most employers go wrong.

The duty to consult derives from the statutory obligations of good faith dealing in s.4 of the Employment Relations Act 2000, which refers specifically to redundancy situations in s 4 (1A) and s 4 (4)(e).

What “consultation” means was detailed by the Employment Court in 1994, in the case of Julian v. Air New Zealand Ltd. In summary, consulting involves inviting views on a proposal before it has been finally decided upon, listening to those views with an open mind, and then deciding what will be done. Consultation does not require that there be agreement, but it clearly requires more than mere prior notification, and genuine effort must be made to accommodate the views of those being consulted, as the tendency in consultation is to seek at least consensus.

Potentially affected employees must know what is proposed before they can be expected to give their views and so sufficiently precise information must be given to enable the potentially affected employee to state a view, together with the reasonable opportunity to do so. The employee must be free to say what they think.

There are no universal requirements as to form or duration of consultation but consultation is never to be treated perfunctorily or as a mere formality, and consultation must be allowed sufficient time. The employer is entitled to have a working plan already in mind, must keep its mind open and be ready to change and even start afresh.

So, typically, consultation on an individual basis with each potentially affected employee must precede any final decision involving the following:

1 whether to restructure, reorganise or close down;

2 how the restructure, reorganisation or close down will take effect;

3 how many posts are to be lost;

4 precisely which posts are to be lost

5 the criteria to be used to select which staff will be dismissed;

6 whether the employee being consulted will be dismissed having applied the criteria;

7 which alternative posts may be available;

8 whether the employee being consulted will be placed in one of the alternative posts.

Although this looks daunting, a step by step approach will ensure that the employer will achieve a fair redundancy. And you never know - the consultation may even change your views on how to effect the changes.

Suspension – the do’s and don’ts

2011-02-07T15:13:00.001+13:00

Often, when an employee is suspected of misconduct, one of the first thoughts that cross the manager’s mind is “can we suspend him/her”?

The answer will, like most things legal, all depend on the circumstances.

First, do you have a contractual right to suspend? If the employment agreement refers expressly to the right to suspend the employee during any disciplinary investigation, the employer has greater freedom to suspend the employee. However, the right must be used in good faith and must not be for longer than is strictly necessary. Sometimes employees are suspended for months – that would almost certainly amount to a disadvantage in employment, except where the employee had sound reasons.

Can you suspend someone even without the express contractual right to do so? Yes, so long as there is a clear and justifiable rationale for the suspension and the employee does not have a right to work, either expressly or impliedly. (Which would be unusual – some performers, for example, have the right to work, so as not to lose their public profile and their skills atrophy).

Good reasons to suspend someone include where there is a genuine fear that the employee may interfere with witnesses; where there is an allegation of sexual or other harassment, and you wish to keep the alleged harasser and the alleged victim apart; where the allegation is one of theft or other dishonesty and the employer wants to protect their assets; where there is a risk of violence; and where there are material health and safety risks. More trivial reasons may not be seen as sufficient justification.

Should the suspension be paid or unpaid? If the employment agreement does not give the right to suspend someone without pay, you cannot do it. However, even if there is a right to suspend on pay, the employer must be very careful to ensure that the criteria for suspension have been correctly met, and that suspension without pay is not for any longer than is strictly necessary.

Even if suspension is on pay, overly long suspensions can amount to an unjustifiable disadvantage.

Finally, it is worth bearing in mind that, even though suspension is not a disciplinary sanction, and should not be treated as such, it can be seen by staff as indicative of guilt. It is not something to do lightly therefore.

A redundant process?

2011-02-01T12:57:00.000+13:00

When people get made redundant, they often doubt the genuineness of the dismissal, saying that the redundancy was just a sham to get rid of them. The truth is, that’s usually not the case. And yet, so many Applicants win their claims for unjustifiable dismissal in the Employment Relations Authority because their employer did not follow a fair process.

A fair process entails a genuine consultation process. That’s more than just convening a 20 minute meeting, telling someone they are going to be made redundant and asking them what they think about it.

Yet another case has been reported of an employer, this time in Christchurch, losing the claim against them because of an inadequate consultation process even though the redundancy was genuine. (Dowds –v- Martin Hydraulics Limited - CA 236/10 5289465). Mr Dowds was awarded one month’s salary, together with $8,000 for hurt and humiliation. That’s quite a tidy sum, and one that could have been avoided with just a little more preparation and patience.

Here’s what should be done to make a redundancy consultation fair:

1 Consult with the employee about the business decision to reduce costs and make redundancies, not just about who should be made redundant. Consider alternatives to redundancy. This is a mandatory requirement under s 4 (1A)(c) of the Employment Relations Act 2000.

2 Follow any redundancy process set out in the Employment Agreement or other company documentation.

3 Give sufficiently precise information to allow the employee a reasonable opportunity to respond.

4 Give a reasonable time for the employee in which to respond

5 Keep an open mind and listen to suggestions made by the employee, consider them properly, and then (and only then) decide what is to be done.

6 If the employer is using performance as a selection criterion, put the concerns about performance to the employee and give him or her have an opportunity to answer them.

7 If the employee raises something that you cannot answer, adjourn and investigate, so you can give a complete answer.

8 Consider whether there is suitable alternative employment available for the employee and offer it if so.

9 When you make your final decision have another meeting to discus it; don’t just hand the employee a letter. Do address each and every point the employee made. Confirm this all in writing.

10 Offer the employee support in finding a new job.

All this may seem like a long drawn out process. It may be, but the alternative is to pay through the nose. Time is money, sure, but so is an unfavourable determination in the ERA!

Promoting peace in the workplace

2011-01-31T12:26:00.001+13:00

Apparently, according to a report on Stuff.co.nz, January is the best month to get promoted in many countries. That’s heartening to hear, and I fondly think it’s because companies like to give a late Christmas present. The real explanation is more mundane and hard nosed – January is the end of the fiscal year in many countries.

This got me thinking about promotions from the point of view of the employer. Rather like with a new hire, everyone gets a warm fuzzy feeling when there’s a promotion. However, there are a few issues that sometimes get forgotten in all the excitement.

1 If the lucky employee has not worked at the new level before, there is a chance they won’t cut the mustard. Although the employer can’t impose a Section 67A 90 day trial period, as the employee will not be a new employee, it should make it a written condition of promotion that the employer can review the performance during the first 3 months or so and decide that the employee should revert to his or her old position (if it is still available) and old salary if the performance is unsatisfactory.

2 Pay increases and extra benefits should be expressly linked to the new higher level post in case the employee decides he or she does not want to carry on in the new post and wants to revert to the old position – that way employers can reduce the pay to former levels. There would be no obligation on the employer to agree to the employee reverting to the former post though.

3 Obviously, no one wants staff to fail in their new post, and so employers should put in place training and support during the first few weeks of a promotion to reduce the chance of failure. This is especially useful with new managers – man management skills are often something that are just assumed to evolve - sometimes training can make a big difference.

4 Allowing employees to “act up” to the new position prior to a promotion to help them learn the ropes and settle in is another good way of minimising failure.

5 If the employee has new responsibilities that bring them into contact with important clients and contacts, or important confidential information, check that the Employment Agreement contains enforceable restraint of trade and confidentiality provisions. It’s no good shutting the stable door after the horse has done a bunk. The employee will have to sign the new EA for the clauses to be binding.

6 In fact, the occasion of a promotion should prompt the review of the employee’s EA to check the terms are still appropriate in general. About to be promoted staff are often much more willing to sign new agreements.

7 If the employee gets a company car for the first time, ensue they read and sign a copy of the company car policy. Don’t assume that they know the rules just because they are a current employee.

8 Finally, there may be resentful co-workers who think the promotion should have been theirs. They may need careful handling to ensure they don’t sabotage the newly promoted colleague.

All in all, promotions are a cause for celebration. Just ensure all the ducks have been arranged in a nice neat row first though.

Drugged up and dropped out (of the workforce)

2011-01-28T16:19:00.000+13:00

Stuff.co.nz reports today that The New Zealand Drug Detection Agency (NZDDA) performed 29,315 on-site drug tests in 2010 - over double the 13,179 tests they did in 2009 – and that 9 per cent of all tests were positive. Cannabis is the drug most used, occurring in 70.3 per cent of positive tests around New Zealand.
The reason most employers choose to test their staff is health and safety related. If employees are operating machinery – including vehicles – an impaired performance through drugs or alcohol will greatly increase the chance of accidents. But will a positive result automatically give the employer the right to dismiss?

First, no matter how clear cut the result, the employer must call a disciplinary hearing and follow all the rules in terms of a fair process. A failure to do so will result in a finding of unjustifiable dismissal. The only exception to that is where the employee has signed an employment agreement which contains a valid trial period under sections 67A and 67B of the Employment Relations Act 2000 and notice of dismissal is given within the trial period. (From 1 April 2011 all employers, regardless of size, will be able to offer trial periods in their employment agreements to new staff).

Even if the employee follows a fair process though, a positive test result will not give it the automatic right to dismiss. The employer would have to show that staff knew that the use of non prescription drugs and alcohol could result in dismissal – this would usually be by way of the dissemination to all staff and contractors of a Drug and Alcohol Policy, Disciplinary Procedure or Code or Conduct spelling out that consequence.

In addition, the use of the drug or alcohol must have, potentially at least, some adverse impact on the employee’s employment. Where the employee is in a safety critical job, this would be an easy burden to discharge. Where the employee is desk bound, with no interaction with the public, the burden of proving adverse effect will be a little harder.

Not surprisingly, the extent of the drug use revealed is also relevant. A marginal positive result will not usually give the employer the right to dismiss unless the employee has either been warned before, or company polices state that no drug use will be tolerated.

All in all, the employer has to show a justification for the dismissal. Getting its ducks in a row with a clearly worded, comprehensive policy is an excellent place to start.

Having your cake and eating it – interim reinstatement in NZ

2011-01-28T12:24:00.001+13:00

If you are dismissed because you are overheard by your boss badmouthing your employer to an important business partner, should you be allowed back into the workplace pending the substantive decision of the courts as to the fairness of your dismissal? Most would say no, and that was the approach taken by the Auckland Employment Relations Authority in December 2010 (Steel –v- Steelpipe Limited).

New Zealand law allows a dismissed employee to apply for interim reinstatement pending the substantive determination of the fairness of the dismissal. It’s obviously a useful tactic, if the employee has the funds to launch an application. To be reinstated on an interim basis the ex-employee needs to persuade the Employment Relations Authority or Employment Court of the following:

1 That there is an arguable case.

2 If there is, that an adequate alternative remedy is not available to the ex-employee

3 If there is not, that the balance of convenience lies in interim reinstatement, and,

4 That the overall justice of the case favours reinstatement.

The Authority in the Steel case decided that there was an arguable case that Mr Steel would win his claim of unjustifiable dismissal (the threshold of showing an “arguable case” being very low) but that monetary compensation would be an adequate alternative remedy to reinstatement.

The Authority also considered that the balance of convenience was with the employer, largely because the employer could no longer trust Mr Steel not to repeat disparaging remarks about it, and that the constant supervision needed to ensure he did not was disproportionate.

Finally, the overall justice of the case favoured rejecting the application. Mr Steel did not dispute that he had said what had been overheard saying (comments which the ERA felt were inconsistent with Mr Steel’s duty of faithful service).

The outcome of this case is not surprising, but it is interesting that Mr Steel thought he could both badmouth his employer on the one hand and ask to be reinstated to its employment on the other. That is wanting your cake and eating it if you ask me.

From 1 April 2011 reinstatement will no longer be the primary remedy in New Zealand, and will only be ordered when it is practicable and reasonable to do so. This change is likely to make interim reinstatement even harder to achieve.

There’s more than the law – when gender reassignment and religion clash

2011-01-27T16:47:00.001+13:00

A little while ago I was asked by a client which operated in a high security environment to solve an interesting legal conundrum. All staff entering into a certain area had to pass thorough a metal detector and a proportion of those be subjected to a random physical search, consisting of a pat down. Male staff members were patted down by male guards and females by female guards.

One of the female staff members had discovered that one of the female guards had previously undergone gender reassignment surgery and been born a male. The staff member was strongly religious and objected to the guard patting her down because, according to the staff member, the guard was still a man in God’s eyes and she was not allowed to be touched by a man to whom she was not married.

The client faced a choice. They could ask the guard to step aside when this female staff member came on and left her shift, so that another female guard (one born a female) took over. The problem with that was that the gender reassigned guard was now legally a woman and could be subjected to an unlawful disadvantage by reason of her gender reassignment by being asked to step aside purely on the basis of her gender reassignment.

The other choice was to tell the staff member she had to put up with the gender reassigned guard or face disciplinary action on the basis of “gender reassignment” discrimination. In that case, of course, there would be a risk of a religious discrimination claim from the staff member.

My legal analysis of the issue was that the terms of the staff member’s employment were clear – she had to submit to a physical search where required, so long as she was searched by a woman – and the guard was legally a woman.

However, I was aware that the staff member’s views were genuinely held, and I felt that a more pragmatic solution should be sought than attempting to force her to comply on the basis of the strict legal position. As the guard and the staff member both worked flexible shifts, HR agreed to ensure that the staff member did not start or end her shift while the guard was on duty. The staff member was told this, but was asked not to discuss the solution with anyone. The guard was not told of the arrangement.

Some may say that it may have been not quite wholly pukka not to tell the guard of the arrangement. However, in reality, the guard was not being disadvantaged, and the staff member was not being forced to undergo an experience she found distressing from the point of view of her faith.

Sometimes, the most obvious legal route is not always the best route. I am not advocating for a moment deliberately adopting unlawful practices, but HR practitioners and employment lawyers do need to work together to find a pragmatic solution to problems. There is usually more than one way to skin a cat!

Was the past a bit TOO touchy feely?

2011-01-25T15:45:00.003+13:00

Thirty years ago, I started my first proper job. I worked in a small branch of a well known British bank, situated in one of the more well-heeled parts of London. (Our customers included a cousin of the Queen, as well as several famous actors, artists and other early 1980’s celebrities).

However, unlike our customers, the behaviour of some of the staff was far from well bred. There was one man in particular (one of the longer serving staff members) who made it a habit of - and I can’t put this more delicately - touching up the female staff. Correction – some of the female staff; the young, pretty ones.

Looking back, it was quite extraordinary how he was accorded a kind of droit de seigneur, regarding it as his right to enjoy tangibly the physical attributes of his colleagues. Even more extraordinary was that the victims of his attentions did no more than mildly demur. Management turned a blind eye because Stan was a bit rough around the edges, but a “good sort”.

Another characteristic indication of this bygone era was the fact that smoking was tolerated in the office, an indulgence that was taken advantage of by all - half the staff smoked actively, the other half passively. The only place where smoking was not allowed was near the tills, but that was because it didn’t look very classy.

Fast forward thirty years, and both behaviours are now not only regarded as shocking, but are also actually unlawful, both in the UK and in New Zealand. It’s hard to imagine it any other way.

Thinking of all this, I was set to musing about how things will be 30 years hence. While it’s tempting to say that acceptable workplace behaviour will be even more codified and circumscribed (e.g., universal no-dating-colleagues policies, no Christmas parties, compulsory 50:50 splits between male and female memberships of boards of directors) I think it will all depend on the state of the economy over the next thirty years. When things are comfortable, respect for human rights and dignities prevails. When things get tough, more pressing needs take precedence.

Any predictions how the typical New Zealand workplace will look in 30 years time?

Tidy desks, tidy minds?

2011-01-25T11:43:00.002+13:00

Does a tidy desk mean a tidy mind? Maybe, but the corollary is not necessarily true. One of the sharpest lawyers I ever knew had a desk so multi-layered with paper that it was like a full scale archaeological dig every time he needed to retrieve a file. Rumour has it is that he once unearthed a pre-Cambrian fossilised pizza slice.

He happened to be very senior, so no-one told him off. But what if a more junior member of staff cultivated a similar lucky dip approach to their work station? Should you tell them to tidy up? Could it become a disciplinary issue if she or he refused?

I’m betting that most managers would say yes. In this case, I’d agree, but you would need to have a justifiable reason why. If the standard of work is being adversely affected, of course. If not? Well, if they fell under a bus, or were away from the office for a less gory reason, could others find important documents easily? Probably not, and that’s a good enough reason to insist on a better way of working, including a disciplinary route if bad habits persisted.

However, sometimes managers just itch to get their staff to do things their way, with no other underlying reason than a liking for micro-management. A friend recently recounted how her boss (more lawyers I’m afraid) insisted she dictate her documents, even though my friend types exceedingly fast and accurately, and much prefers to type her own work. She told me how upset she felt at being told how to do her job, for no obvious good reason. That sort of scenario sounds like the making of a personal grievance.

So, the moral of this blog is to always stop and think WHY disciplinary action may be called for, and to identify the harm that needs to be rectified. The “do as you’re told because I’m the boss” approach won’t get you very far in an Employment Relations Authority investigation.

A discriminating mind

2011-01-24T17:09:00.001+13:00

Unfortunately, not everyone can be trusted to behave professionally in the workplace. This means that, eventually, someone will end up harassing or bullying one of their work colleagues. This can be gender or race based, or can be by reason of any number of other criteria – disability, marital status, sexual orientation, religion – the list goes on.

When this happens you, as the manager, have a problem. In fact you have several problems. First, you have a victim who, at best, is angry and distracted, and at worst, severely distressed and vulnerable to psychiatric and/or physical harm. Next, you have a bully who is disrupting the workforce, and who may repeat the behaviour with other staff, or even your suppliers, customers and other third parties.

Third, you have a legal problem. As the employer of the bully/harasser, your company faces claims under the Employment Relations Act or Human Rights Act. Lastly, you have the complicated and onerous task of investigating the issue and taking the appropriate steps. Often, disciplinary action can itself end up in a personal grievance and court action by the alleged bully.

All in all, it’s a bloody mess, and best to be avoided.

There’s no magic formula to prevent discrimination and bullying, but here are some steps you can take to help prevent unseemly debacles.

1 have a robust equal opportunities policy and code of conduct which are given to all staff, and which set out what behaviour will not be tolerated, and the sanctions faced by those who ignore the policies;

2 have an induction process for all new staff who join the company which covers equal opportunities and expected behaviour;

3 have refresher training for staff every year or so. This need not be elaborate; a two hour session will do the trick if delivered properly;

4 keep your eyes open and your ear to the ground – some signs of bullying and harassment are subtle;

5 nip behaviour in the bud quickly if it has the potential of upsetting or alienating people;

6 treat all complaints of harassment and bullying very seriously, and give the investigation your full attention;

7 except in the simplest cases, seek professional advice when dealing with a case of bullying or harassment;

8 respect the privacy of all concerned;

9 never jump to conclusions;

10 arrange support for victims via an EAP and other professional support bodies.

If this all seems like a hard slog, it will be even harder if you are facing a claim in the Employment Relations Authority from a staff member who claims that you ignored their pleas for help, or failed to protect them. That has all the hall marks of a very expensive encounter.

S32 of the Receiverships Act – the jurisdiction of the Employment Relations Authority to determine receivers’ personal liability

2011-01-19T11:53:00.003+13:00

Regretfully, New Zealand is seeing a number of companies going into receivership, with consequential losses of jobs.

Receivers have to decide within 14 days of their appointment whether they are going to continue to dismiss staff or re-employ them under new employment agreements which exclude their personal liability. If they fail to do either, the receivers will be personally liable for “payment of wages or salary that, during the receivership, accrue under a contract of employment relating to the property in receivership and entered into before the appointment of the receiver”. (Section 32 of the Receiverships Act 1993).

In order to dismiss staff so as to avoid personal liability, the receivers have to ensure that “notice of the termination of the contract is … lawfully given within 14 days after the date of appointment”

What is meant by “lawfully given”? This has been resolved to an extent by the Court of Appeal case of Weddel New Zealand (in receivership and liquidation) [1998] 1 NZLR 30, which made clear that the notice of termination need not comply with the terms of the employment agreement, only with the terms of the Receiverships Act.

What goes “given” mean though? What if the letter of termination is sent within 14 days but not received until after 14 days have expired? Does the receiver take on personal liability? An employee who has not been paid by the company in receivership may want to try to argue that the receiver is liable where, say, they are owed more than the $18,700 that is treated as a secured debt pursuant to the Receiverships Act and the company cannot pay that surplus.

In such a case, can the employee bring the case in the Employment Relations Authority against the receivers?

In a word, no. The High Court only has the jurisdiction to determine the issue. This is because assessing the potential liability of the receivers under s 32 of the Receiverships Act would not be a question about an “employment relationship problem”, as there is no “employment relationship” between the receivers and the Applicant. Therefore, as the Authority has exclusive jurisdiction to consider “employment relationship problems”, it cannot determine this issue.

This has recently been confirmed in the Christchurch ERA case of Corkran –v- Grant Thornton, as receivers of LivingSpace Properties Limited (in receivership and liquidation) CA 221A/10 5318854.

As for whether a letter of termination sent within 14 days but not received until after 14 days confers liability on the receivers, there does not appear to be any recorded NZ decision on the matter. If anyone knows of one, I’d be delighted to hear about it.

Thinking of utilising the widening of the 90 day trial period law?

2011-01-17T12:12:00.002+13:00

From 1 April 2011 all employers in New Zealand will be able to agree with their new employees that the first 90 days of employment will be a trial period, at the end of which the employee may be dismissed without having the right to bring a personal grievance for unjustified dismissal.

If your organisation is thinking of taking advantage of this important change in employment law, then you need to get a few ducks in a row, both before you insert a trial period clause, and before implementing the right to dismiss:

1 get the wording straight now, ready to insert into new employment agreements from 1 April 2011;

2 think about the interaction between the trial period and any probationary period that may already be included in the EA. Ensure they do not conflict. Do you even need a probationary period any more?

3 devise a policy to decide what you do about potential new staff who refuse to accept the 90 day trial period clause. Do you deal with each case as it comes? Will there be certain grades of staff who you won’t offer the trial periods to?

4 do not allow any staff whom you intend to put on a trial period to start work before they have signed the agreement. This is crucial, as an error in this regard precludes reliance on the 90 day trial period altogether;

5 diarise for each staff member subject to a trial period a review of performance BEFORE the 90 days is up. Notice has to be given before the expiry of the 90 days to be effective. (Notice, once given, may expire after the 90 days is up though);

6 ensure you scrupulously honour the notice period set out in the EA when dismissing;

7 make sure that you comply with the general precepts of good faith when reviewing performance pursuant to the trial period, and be careful not to disadvantage the employee other than in respect of the dismissal itself. There are some exceptions to the duty of good faith when relying on the 90 day trial period, but they are tightly prescribed, and it would be a mistake to think that you need not follow any kind of fair process whatsoever.

8 Design a process for dismissing staff within the trial period, and stick to it, so that there is consistency. Dismissed employees can still claim discrimination, so you want to avoid inadvertently treating people differently.

I’m holding a free seminar in Christchurch on 23 February to discuss this and other changes to the NZ employment law scene. Email me on david.appleton@gtrlaw.co.nz if you would like to attend – kick off will be at 4pm.

Bargaining fee test case for employees who resign their union

2010-12-22T11:45:00.001+13:00

The Christchurch Employment Relations Authority has issued a determination which is of importance not only to all unions but to all employees and employers with collective employment agreements. The case is New Zealand Dairy Workers' Union v Westland Co-Operative Dairy Company Ltd (CA 206/10 5295246).

In short, 7 employees resigned from the union but, for various periods, continued to be employed pursuant to the Collective Agreement which contained a bargaining fee clause. The employees however refused to consent to the deduction of a bargaining fee in accordance with the Agreement and Westland refused to deduct that bargaining fee without the consent of the former members of the Union.

The case involved the union trying to rely on Part 6B of the Employment Relations Act 2000 to recover the bargaining fees.

The purpose of a bargaining fee is to deal with the issue of what is sometimes called the freeloader situation, where a worker obtains a benefit from the negotiations of a bargaining agent (including a union) but fails to contribute financially to the activities of that bargaining agent, notwithstanding that that worker has received a benefit from those activities.

The ERA determined that the Union was entitled to receive a bargaining fee pro rated for the period from the date of the resignation from the Union to the date that each of those seven employees signed an individual employment agreement which was different in its terms from the collective employment agreement which the Union bargained for.

For some employees that amounted to just one day, for others, several months. There’s a lesson there!

How to avoid a Secret Santa Scandal

2010-12-22T09:25:00.002+13:00

The UK publication, The Lawyer, has passed on the following, slightly hysterical warning from an English law firm.

“Manchester firm Lewis Hymanson Small has issued a timely reminder to office workers to exercise caution over when choosing their Secret Santa presents. According to the firm’s head of employment law Neeta Laing, an inappropriate gift could even lead to a harassment case.

“If an employee does receive, for example, a pair of lacy knickers and finds the gift offensive and wishes to pursue a harassment case, this must be taken seriously,” said Laing, before going on to explain the steps employers can take to make sure that the annual Christmas party doesn’t lead to a date in court.
She also advised staff to think about who they were buying for. “Use your common sense,” continued Laing. “Don’t give religious colleagues alcohol or offensive magazines, male colleagues tool kits or female workers kitchenalia.”

Among the presents to avoid, the firm listed aprons, diet books, alcohol and deodorant.” (The Lawyer, 17 December 2010)

I don’t know about you, but whilst this advice is a new twist on the annual (and somewhat tedious) “be careful of the office Chritmas party” press releases that appear every year from law firms all over the world, it is pushing political correctness just a wee bit too far. They’ll be telling us next the only safe presents are socks and hankies – give me a tool kit, or even "kitchenalia" any day!

Happy holidays everyone!

Getting dismissals right – a cautionary tale

2010-12-20T12:27:00.001+13:00

The Employment Court case of Villegas –v- Visypak (NZ) Limited is a cautionary tale of how important it is to state clearly the reason for dismissal and ensure it links to the terms of any final warning relied upon.

Mr Villegas was employed as a forklift hoist driver. He was involved in a near miss through driving his forklift in an unsafe way, and received a 6 month written warning as a result. The warning advised Mr Villegas that he was to “drive his fork hoist safely, report all incidents, listen carefully to all instructions and, if at all unsure, clarify what is required and work as a co-operative team member in the department.” The Employment Court found that this written warning was justified.

Mr Villegas was then involved in three further incidents during the lifetime of the last warning, and received a 12 month final written warning. The three incidents involved loading a full LPG cylinder unrestrained onto the forks of the fork hoist and driving it at speed; damaging a water pipe, leaving it spilling water onto electrics and tipping over a full bin of parts which, as a consequence, had to be scrapped. Again, the Court found that these incidents demonstrated blameworthy conduct.

The company’s last straw came when Mr Villegas deliberately tipped over a 3 metre stack of pallets containing cardboard boxes because, he said, he could not retrieve the top items any other way. The Employment Court found that this action had demonstrated a lack of concern for safety.

The Company decided to dismiss Mr Villegas because of the deliberate tipping incident. The reason given in the dismissal letter was “a failure to follow specific instructions.”

The Employment Court, however, found that this was an unjustified dismissal. The dismissal letter stated there was a failure to follow instructions but did not explain what those instructions actually were. The Court presumed it related to the instructions given in the two previous warning letters, but had difficulty with that interpretation as the actual event that gave rise to the dismissal bore little resemblance to the four instructions in the warning letters.

The lesson is for employers is as follows:

1 first clearly and accurately identify what breach or breaches of conduct they are unhappy with, and then investigate them specifically;

2 set out clearly in any written warning what breaches have been found and what corrective conduct is expected. State the breaches widely if possible, to give more scope for tracking back to them in any subsequent dismissal;

3 expressly cross refer back to the live warning if relying on it in any dismissal.

I hope that the new justification test which will be in place from 1 April 2011 will see a more flexible and holistic approach being taken by the ERA and the Employment Court in cases like these.

Competing priorities - when non compete restraints do not work

2010-12-13T16:48:00.001+13:00

A recent Employment Court case (Kiwi Stat Limited –v- Nichols) has emphasised that a company cannot stop an ex-employee working for a competitor without good reason, even if the employee has signed a restraint of trade clause on first being employed which agrees to such a restriction.

Kiwi Stat locates and places doctors in hospitals on locum or other short term assignments. There are two other companies in New Zealand that does the same, and many hospitals and doctors will use all three companies. Ms Nichols was a “locum coordinator”, whose role was to receive requests from a particular group of hospitals and to match a doctor to each request. She was offered a job with one of the competitor companies and Kiwi Stat tried to enforce a restraint of trade clause in her employment agreement with them which tried to prevent her from working for a competitor in New Zealand for 12 months.

The Employment Court decided that the restraint was unreasonable and declined to enforce it. Its starting point was that a restraint of trade or employment was usually unenforceable as contrary to public policy, but that restraints may be enforceable to the extent reasonably necessary to protect the legitimate proprietary interests of the employer.

In this case, though, the Court noted that the relationship that Kiwi Stat had with each doctor did not rely on any single employee like Ms Nichols, and that several locum coordinators had working relationships with each doctor. The relationships with doctors were also very much more with the company than with Ms Nichols. Therefore, the court was not satisfied that there was a sufficient substantial proprietary interest to be protected.

Furthermore, there was a confidentiality provision in the employment agreement with Kiwi Stat which adequately protected the confidential information which the company held on its database of hospitals and doctors. As Ms Nichols had not breached the confidentiality clause and did not intend to do so, the Court felt that this was an adequate mechanism to protect Kiwi Stat which was far less prejudicial to Ms Nichols.

So, Ms Nichols was able to continue working for her new employer. The lesson is, you can’t stop someone competing alone. You have to show that you have a substantial interest which needs protecting and that a non compete clause is the most effective way of doing so.

Sexual harassment results in $10,000 award

2010-12-03T12:43:00.001+13:00

The Employment Relations Authority has awarded $10,000 compensation to an employee who was sexually harassed at work (Tailor –v- BOF Limited, trading as Moreton’s Restaurant and Bar AA 468/10 5165386).

The difficulties experienced by the employee were compounded when the employer failed to report back to the victim the results of its investigation into her complaint and the steps taken to prevent a recurrence of the objectionable behaviour and the harassment.

The employee was a female sous-chef in a restaurant who was subjected to inappropriate actions of a sexual nature by a male manager. He stopped them when he was given a warning but then started bullying her. She ended up resigning.

Ms Tailor’s claim of constructive dismissal failed because the ERA did not find that it was reasonably foreseeable that Ms Tailor might resign in February 2009 because of Moretons’ failure to report back to her until 24 January 2009 on the outcome of the mid-December 2008 complaint, when the conduct complained of had stopped straight after her complaint.

However, there was found to have been a breach of duty to take all practicable steps to ensure a safe and healthy work environment for Ms Tailor (by not reporting promptly to her the outcome of her complaint). There was also found to have been sexual harassment of Ms Tailor.

Unfortunately, Ms Tailor suffered significantly as a result of her situation. She is reported as having suffered sleeplessness, avoidance, low mood, tearfulness, loss of appetite, anger, lack of concentration and other physical symptoms. She was prescribed antidepressant and insomnia medication and also accessed counselling and therapy. The clinical psychologist’s view was that Ms Tailor’s presentation and symptomatology could match a diagnosis of an adjustment disorder, acute and with anxiety. This resulted in an award of $10,000.

This scenario is common but is entirely preventable. First, all staff should be trained in the basics of proper behaviour at work, avoiding harassment and bullying. Second, complaints should be promptly and properly investigated; and third, the outcome and proposed steps clearly communicated to the victim.

A farmer/worker relationship – frustrating but not frustration

2010-12-03T10:31:00.001+13:00

The Court of Appeal has published its decision in a case about whether an employment agreement had been frustrated in law when the employee fell under suspicion of sexual abuse of the employer’s young son. (A Worker v a Farmer - CA552/2009 [2010] NZCA 547)

Putting aside the legal aspects for a moment, the case illustrates vividly the difficulties that can sometimes arise when employer and employee live and work together. When the farmer’s 4 year old son suggested he had been touched sexually by the worker who lived on the farm, the farmer and his wife understandably wanted the man out immediately. The worker denied the charges, but left voluntarily.

However, despite what seems an extensive police investigation, including using DNA analysis, the police were unable to substantiate the allegations and no charges were brought. The worker brought claims of unjustifiable dismissal.

He won his claim in the Employment Relations Authority but lost on appeal to the Employment Court, which decided that the employment contract had been frustrated once the farmer’s son had made his allegation of indecent assault. The employment relationship came to an end then and there, the Court said, and the worker had not been dismissed. The Employment Court accordingly found that the personal grievance of unjustifiable dismissal had not been sustained and the appeal was allowed.

The worker then appealed to the Court of Appeal. The Court of Appeal looked at the law of frustration and found that, as the Employment Relations Act imposes statutory requirements, including dealing in good faith and providing the employee with an opportunity to comment on information relevant to a proposed termination of employment, it could not be said that the employment contract did not make sufficient provision for what had occurred, a prerequisite for the concept of contractual frustration to apply.

So, the contract had not been frustrated, and the worker had been dismissed. The case has now been remitted to the Employment Court to find out if the dismissal had been unjustified. As no dismissal process had been followed, it probably will be found to have been unjustified.

Whatever the outcome, this is an awful situation that must have caused considerable distress to everyone concerned.

Offer of suitable alternative employment required in a restructure

2010-12-02T14:31:00.002+13:00

There’s an important Employment Court case which many New Zealand HR practitioners may have heard about by now, but in case not, here’s a short synopsis.

It’s called Wang v Hamilton Multicultural Services Trust and can be accessed on the EC website under October 2010 decisions. In short, the case decided that, where an employee whose post has been genuinely lost through redundancy is able to perform the duties of a new position the employee should be offered the position by way of redeployment rather than having his previous position terminated and requiring him to apply for the new position when it was advertised. This is the case even where some up-skilling may be required.

This changes the law which has prevailed since the Employment Contracts Act, which was that, in the absence of an express contractual provision to the contrary, it cannot constitute unjustified dismissal not to offer a redundant employee a different position.

So, employers need to beware of merely allowing an employee to apply for an alternative position which could be a suitable alternative position for him or her. There is now an obligation to offer the alternative position to the employee. This may be affected by the new justification test that’s coming into force on 1 April 2011, but I doubt it. For years the UK has had the same range of reasonable responses test that the new justification test will impose, and has also recognised employers’ obligation to offer suitable alternative employment. The two are not incompatible.

There was one aspect of the Wang decision which I believe is totally wrong though. The EC refused to order reinstatement of the employee partly because his claim of racial and ethnic discrimination had caused “great stress and grief” and had “potentially undermined the culture of the Trust”. However, unless the EC had found that his discrimination allegations had been made in bad faith (which it did not) Mr Wang was entitled to bring the claims in law and should not be penalised for doing so. To use this as a reason not to reinstate him is, in my view, akin to victimisation.

$25,000 award against Fonterra

2010-12-02T14:24:00.000+13:00

Some of you may have seen the reports of the ERA’s award of over $25,000 to a former forklift driver (Ms Milner) who was dismissed by Fonterra following illness which she attributed to an accident at work. The report I’ve read suggests that the dismissal was found to be unjustified because the illness was caused by work. This is not what the actual decision says though.

The employee was a party to a collective employment agreement that gave her certain rights if injured at work. These included the right to have her position preserved until signed back as fit to return and the right to a severance payment if declared by her doctor as permanently unfit to return to her original position as a result of that accident and another suitable position could not be offered.

The illness was originally declared by Fonterra’s insurers not to have resulted from an injury at work. Ms Milner was challenging this when she was dismissed, the reason given by Fonterra being that it was not known when she would be able to return to work. The insurer eventually agreed that the illness was caused by an accident at work.

The dismissal was found to be unjustified because Fonterra did not wait for resolution of Ms Milner’s challenge that her illness had been caused by her accident. If they had waited, they would have been obliged to follow the terms of the collective agreement. The reason Ms Milner was awarded over $25,000 is that she was entitled to $17,560 as a result of her rights to a work related severance payment.

So, just because someone is injured at work does not, of itself, mean that the employer can never dismiss. However, waiting for resolution of an outstanding issue and complying with contractual obligations are always good ideas.

An erosion of workers’ rights, or a levelling of the playing field?

2010-07-16T12:18:00.002+12:00

The Prime Minister hinted yesterday that the 90 day trial period introduced in March last year, during which employees can be dismissed without being able to raise a personal grievance for unjustifiable dismissal, may be extended to all work places, instead of just those which employ fewer than 20 employees, as is currently the case.

The details have not yet been released, but the general principle does make sense in my view. It’s not as if employers with 20 or more employees experience fewer problems with new starters who do not work out, or that they all necessarily have better resources to deal with PGs for unjustifiable dismissals. Furthermore, the change might even encourage employers whose staff numbers hover around the 19 mark to expand their workforce.

The change must not make bigger employers complacent though. First, the trial period must not be a substitute for deploying effective and thorough recruitment methods, and just because an employer can eradicate hiring mistakes by dismissing a poor performer within the first 90 days does not justify the unpleasantness and disruption that the presence of a poor performing employee in the workplace entails.

Secondly, assuming that the substance of the 90 day trial period legislation does not change, there will still be several hurdles for the employer to jump before it can safely rely on the trial period. The most important is that the 90 day trial period, as presently legislated for in any event, only applies where the employment agreement provides for it. If the EA is silent, or the employee refuses to accept the clause, the trial period does not apply. This means that, once the 90 day trial period is extended to bigger employers, they will have to amend their employment agreements for all new starters. Incidentally, I can envisage many senior recruits refusing to accept such a clause, and employers who have spent a significant time seeking out the right candidate will probably not jeopardise their hiring for the sake of a 90 day trial period.

Employers will also have to ensure they draft the clause appropriately – 90 days is not the same as three months, for example – and that they calculate the start and end dates properly. It runs from the start of employment, not when the employment agreement is signed, and notice of dismissal must be given before the expiry of the trial period.

The final note of caution is that dismissal during a valid trial period does not protect the employer from claims for discrimination or disadvantage. So, if the reason for the dismissal was a prohibited ground of discrimination as set out in the Human Rights Act, say, or if the employer treated the employee detrimentally prior to the dismissal, or arguably even in the way the dismissal was handled, a claim would still be allowed. This is because the legislation prevents the employee from raising a personal grievance or legal proceedings in respect of the dismissal itself, not other circumstances related to the employment.

How far the law will be changed will be revealed shortly – one thing is for certain though – whatever the details, we will still see plenty of challenges in the courts.

Elegantly simple – untying the red tape

2010-04-29T17:15:00.003+12:00

Employers often bemoan the difficulties of disciplining and dismissing staff. It’s all procedure over form they say; you have to jump through heaps of hoops, no matter how bad the behaviour of the employee. If you get it wrong, you’re stuffed.

Whilst it does often look like that, the law itself in New Zealand does not demand that employers must ritualistically follow esoteric and empty procedures as if they were magic spells. Some Employment Relations Authority determinations may seem like that, but the law doesn’t demand it. All the law requires is a balanced process that’s fair to the employee.

And to try and prove it, we thought we’d boil down to their essence the key elements of fairness in disciplinary meetings. Here are our golden roles.

Keep the employee informed

1 Employees are not mind readers – it may be crystal clear to you how they have transgressed, but still, spell out what it is they are accused of and what evidence you have. You should never ambush an employee in a meeting.

2 Warn the employee in the letter what the worse outcome may be. If it could be dismissal, then say so. That way, the employee will take the meeting seriously.

Gather the facts

3 There are two sides to every story – always let the employee have his or her say on each allegation and each piece of evidence.

4 Don’t jump to conclusions. Gather all the key relevant facts before making a decision. You don’t have to be an investigative detective, but don’t leave obvious gaps unplugged.

5 Consider what the employee knew – did they even know that their actions would be seen as wrong doing? What could they be expected to know?

Who to believe?

6 If there is a straight conflict of evidence, you only have to weigh the evidence and decide what is more likely or not to be true. You don’t have to be convinced beyond all reasonable doubt. On the other hand, you must weigh the evidence fairly, and to be able to explain how you reached your decision.

The sanction to impose

7 Put things in perspective. You may be infuriated because an employee has done something wrong, but is it so bad that they have to lose their job over it? Stepping back and trying to view how an objective outsider would view the facts always helps.

8 Was the bad behaviour or failing so serious that your trust and confidence has broken down irretrievably? If not, a warning is often enough, especially if the employee has a long, unblemished record.

9 Are there any mitigating circumstances that led to the bad behaviour or failing? Was the employee perhaps not herself because of personal issues? Can you be confident it won’t be repeated?

Create a paper trail

10 Always confirm all major steps in writing, and keep a note of all the salient points that were discussed in each meeting.

We’re not suggesting that you can never fire someone of course, but even if you catch the employee with his hand in the till so to speak, you do have to follow these basic rules, and to be able to prove you did. Just as we’d expect a fair trial in a court of law, the law expects employees to get a fair hearing.

Bully for us

2010-04-19T11:02:00.005+12:00

The Press reports that "Kiwis [are the] worst in the world for bullying". (www.stuff.co.nz/the-press/business/3583645/New-Zealands-office-bullies). Obviously, in reality, this claim is impossible to verify scientifically, but the research quoted in the Press piece suggests that "negative acts in the workplace" happen rather too often, with 17.8% of respondents saying that they have been victims. Do we have a rampant culture of bullying in New Zealand or are workers too soft and complain too much?

The answer is probably a complex picture which has elements of both tendencies. On the one hand, New Zealand has a huge number of small businesses where bosses and workers interact closely on a day to day basis. That causes stresses to build up without the safety valve of trained professional HR practitioners to take the heat out of situations. Harsh words are exchanged and someone (be it worker or boss) feels put out. In a way, that's life, and not much can be done about it. (Save that kids could be taught early on in schools how to manage anger and frustration better, but this is a blog about employment law, not social engineering). So, the large number of small businesses probably mean there are more workplace scraps.

On the other hand, workers, at least, do have an easy remedy. They can bring a personal grievance about any disadvantage suffered at work. Many employers feel they can do so too easily, and that the system's too much in the workers' favour. Does the system encourage whinging from softies? Maybe, but the alternative is to remove the right to grieve about issues which may genuinely be the cause for great distress to employees.

In the UK, employees cannot bring formal complaints about low level bullying unless it is based on discrimination. There have long been calls for a change in the law but, so far, no UK government has had the political will to do so. Still, discrimination claims are much more common in the UK than in New Zealand, which is probably a function of the fact that there is no easy way to complain of bullying and the further fact that employees need a year's continuous service with an employer before they can sue for unfair dismissal.

So, what can be done about the apparent "bully culture" in NZ? Basically, education. If employers and employees were taught to communicate with one another about nascent problems earlier, before they got out of hand, many spats would never arise. This duty to communicate is already enshrined in law by way of the obligation of good faith in the Employment Relations Act, but some educational support from the DoL and Mediation Services would not go amiss.

Lots of people posted comments on the Stuff website following the "Kiwis are bullies" article saying that workers should just "harden up". We don't want to encourage whingers, but we can't agree. Bullying affects staff morale, productivity, staff turn-over and the bottom line. At the end of the day, if we all "play nice", we'll probably end up healthier and wealthier.

Face(book) it, you're fired!

2010-03-24T11:28:00.005+13:00

Stuff.co.nz reports that a 16 year old schoolgirl has been sacked from her part-time job in a cafe in England after she lost GBP10, intended to be used to buy some biscuits for the staff. A bit harsh, but the kicker comes from the way the luckless lass was told of her downfall - by Facebook.

Her boss sent the message to the girl's Facebook account when she couldn't raise her by telephone. We think this passage in particular had a certain elegant simplicity which couldn't be misinterpreted:

"I had to tell the owner bout u losin that tenner coz obviously the till was down at the end of day. she wasn't very pleased at all and despite me trying to persuade her otherwise she said I have to let u go. I'm really sorry".

In 2003 2,500 staff were dismissed by an English company by text. As the company went into receivership, there wasn't much the employees could do.

Could this happen in New Zealand? Well, yes. Would it be fair? Umm - maybe. If an employee was within the first 90 days of a valid trial period she could be dismissed without having the right to raise a personal grievance, unless there was some element of discrimination or other unfairness apart from the mere fact of dismissal. Being told about that decision by Facebook or text would not be any less effective than by any other method, so long as the employee reads it.

ThinkN of sackng sum1 by txt? Ask us 1st!

When being coy could cost you your job

2010-03-18T14:40:00.006+13:00

A recent determination of the Christchurch Employment Relations Authority held that the dismissal of a firefighter after he had deliberately withheld information about his mental health was justified. The firefighter had suffered mental health issues in 2008 which led to an enquiry about his mental history. It was then revealed that the firefighter had neglected to disclose previous mental health conditions.

This case should not be taken as an excuse to sack any member of staff who fails to front up with information about their medical conditions though. The starting point is that asking questions about medical conditions could be unlawful. The Human Rights Act 1993 prohibits a prospective employer from making inquiries of a job applicant which could indicate an intention to commit an act of discrimination on a prohibited ground. As the mental health issue could amount to a disability, at first sight asking questions about some one's health will not be permitted if the reason for asking is to wean out those who have disabilities.

The reason the Fire Service was allowed to ask the question in this case, and furthermore, dismiss the employee for failing to answer the question truthfully, was that the Human Rights Act makes it permissible to treat disabled people differently under certain circumstances. One is where the job is such that the disabled person could perform those duties only with a risk of harm and it is not reasonable to take that risk.

So, in this case, where fire fighters have to be particularly robust physically and mentally, it was legitimate to ask the health questions and expect honest and full answers. The failure to answer the question truthfully could have put the fire fighter, his colleagues or others at risk.

However, don't expect the same approach to be followed in a case where a non disclosed medical condition would create no material risk or where the risk could be reduced to an acceptable level by measures which do not cause unreasonable disruption to the employer.

In other words, before asking medical questions of job applicants, be very clear why you are asking them and identify what risk of harm could be created by a positive response.

Young, but not always fancy free

2010-03-18T09:58:00.008+13:00

A bid by ACT MP Sir Roger Douglas to introduce a youth pay rate into the minimum wage will not be supported by the government, it was announced yesterday. The idea behind the proposal was to encourage employers to take on young workers but there was no support for the idea from the National Party, which does not believe it would relieve youth unemployment.

In our view, the legislation is complex enough, and given the government's commitment to relieve burdens on business, it was right to reject what would have been a further layer of complexity.

The current minimum wage in New Zealand for almost all workers of 16 and over is currently $12.50, rising to $12.75 from 1 April 2010. We say "almost all" because there are exceptions:

1 The legislation allows employers to pay below the minimum wage (but no less than $10.00 an hour, rising to $10.20 an hour from 1 April 2010) when the new entrant is a worker who is 16 or 17 years old, until they have completed three months or 200 hours of employment, whichever is shorter, or if they have been supervising or training other workers. The three months or 200 hours includes employment undertaken with different employers but excludes any employment undertaken before reaching 16 years old.

2 The training minimum wage applies to employees aged 16 and over who are doing recognised industry training involving at least 60 credits a year. The minimum rates are the same as for new entrants.

3 A Labour Inspector may issue a minimum wage exemption where it would enable a person with a disability to gain employment and a range of other criteria are satisfied.

Apart from the minimum wage, the Human Rights Act 1993 protects employees aged 16 or over from being discriminated against in their employment on the grounds of age. That means that a young person cannot be treated less favourably than other employees on the grounds of age, so long as he or she has the same or substantially similar capabilities as other employees who are employed in the same or substantially similar circumstances.

In other words, you can pay a young person aged 16 or over less than other workers (but not less than the relevant minimum wage) if you are reasonably satisfied that their capabilities are less than those of older workers. As they learn and develop you would have to keep the situation under review and equalise their pay and benefits when their performance is at a par with that of older workers.

We all remember our first proper job. Most of us were enthusiastic and threw ourselves into it, willing to learn - and we did, fast. In return, being employed gave us independence and helped cement our place in the adult world. Youth unemployment is a nation wide problem that won't be solved by tinkering with wage rates. Employers need to open their eyes to the benefits of employing young, enthusiastic and creative people and not make assumptions based on age alone. (On the other hand, as this writer is nudging 50, I'm bound to comment that the young don't have the monopoly on enthusiasm and creativity!).

Child's play?

2010-03-10T09:16:00.004+13:00

The air traffic control community in the USA is in a tailspin after it was revealed that an air traffic controller let his young son broadcast some routine messages to pilots at New York's JFK Airport. The controller has been suspended and an investigation ordered. As the controller said, "That's what you get, guys, when the kids are out of school".

With the Easter holidays looming, some of you may be tempted to bring your own young 'uns to work. So long as the boss is happy, that should be fine you think - the children get to see where you work, and may learn something into the bargain. But a few simple rules will keep the kids, and you, out of trouble.

● Agree with the boss what they can and can't do.

● Plan some activities; just plonking them at a spare desk with their Playstation for hours will make your colleagues think you are a bad parent.

● Bear in mind their age and capabilities. If you give them something to do, make sure you explain it to them, and help them. Forcing them to do a year's worth of your filing is just going to make them hate work (and you) forever.

● Don't dump them on your secretary or the receptionist for hours.

● Keep them away from hazardous environments. Unless you're going to keep them under constant supervision, avoid the factory floor and never let them drive the forklift!

● Make it fun. You don't want them to think your life is spent in a dreary office doing mind numbing drudgery. Or maybe you want their pity?

Grieving about personal grievances

2010-03-05T09:08:00.000+13:00

Kate Wilkinson, Minister of Labour, has announced a review of the part of the Employment Relations Act which deals with personal grievances. It's a root and branch review with the intention of examining, amongst other things, whether the system strikes a fair balance between employers and employees, imposes unnecessary costs or obligations on employers and employees, and is efficient and effective.

Any business which has had to deal with a personal grievance should log on to the DoL's website (at http://www.dol.govt.nz/consultation/personal-grievance) and give their views. This is a rare opportunity to have a say and you only have until 31 March to do so.

For my two pennies worth, it may be trite to say it but prevention is better than cure. If employers had access to better guidance from the DoL about how to hire the right people and then manage them effectively, most personal grievances would never arise, and the business would benefit in a host of other ways into the bargain.

Oh, and another thing. In the UK there is a system where representatives personally face wasted costs orders as a result of any "improper, unreasonable or negligent act or omission". This applies to any representative, not just lawyers, except those not acting for profit. I suspect that a similar threat in New Zealand would help rein in the representatives who encourage their clients to pursue hopeless claims against their employers just to force the payment of a sum of money to make the problem go away.

If you are an employer who would like to participate in the consultation, and would also like to hear the views of other employers in Canterbury, why not come to the Think Tank discussion meeting at GTR's offices at 96 Oxford Terrace, Christchurch on Monday 22 March between 12.30 and 2pm. Just email david.appleton@gtrlaw.co.nz to let us know you're coming. We'll collate all the views expressed at the meeting and submit them to the Department of Labour on your behalf, on a no names basis.